Tokasz seeks change to eminent domain: Cheektowaga (NY) Times, 8/12/05

A recent decision by the Supreme Court has inspired several members of the New York State Legislature, including Assemblyman Paul A. Tokasz (D-Cheektowaga), to propose changes to the state’s eminent domain law in order to protect property owners.

The assembly’s majority leader said that he plans to introduce reform to the law in Albany next week, which Tokasz said will "strike a balance" between the rights of property owners and the desire of municipalities seeking to support economic development.

The Supreme Court’s June 23, 2005 decision in Kelo v. City of New London stated that a comprehensive economic development plan is a valid public use under the Fifth Amendment of the Constitution for taking property under eminent domain.

However, the Supreme Court specifically ruled that individual states have the right to regulate eminent domain.

Standing on Maryvale Drive in the Cedargrove Heights neighborhood Tuesday morning, Tokasz derided the Supreme Court’s decision, but added he wants to jump on the opening created by the court.

"The Supreme Court made it much too easy for residential takings," Tokasz said.

Residents in Cedargrove Heights are afraid that a proposal by a local developer to raze the neighborhood to build anew will force them to move through eminent domain. The developer has stated that he would prefer to avoid eminent domain proceedings.

Tokasz said that the Supreme Court’s decision supports efforts by local governments to seize private property.

"I can understand the fears that exist," Tokasz said. "This is the eye of the storm. Introduction of this legislation will make it a lot more difficult for the town to move forward with eminent domain on homes."

The legislation Tokasz will introduce establishes new requirements for creating an economic development/housing relocation plan. The bill will also provide significant time for public comment and hearings.

The bill would further require payment of 125 percent to a property owner on the highest approved appraisal when the land is taken for economic development purposes.

"I believe that the local jurisdiction in eminent domain procedures should remain a priority," Tokasz said. "Enactment of my legislation will set a clear procedure for eminent domain, will protect the rights of property owners and will alleviate the rising concerns of the community."

Councilmember Thomas M. Johnson, an opponent of demolishing Cedargrove Heights, applauded Tokasz’s announcement.

"I am extremely encouraged by Paul’s position," Johnson said. "I personally disagree strongly with the Supreme Court’s decision. It has violated some basic principles of American citizenship. It is certainly not a position that would have been supported by our Founding Fathers."

Tokasz noted that he believes there are instances when eminent domain is essential to improving a community. He noted that the procedure was used in order to build HSBC Arena in downtown Buffalo.

"I understand that communities need to move forward," said Tokasz. "But, it shouldn’t be at the expense of homeowners."

Tokasz said that his bill to reform eminent domain is one of four or five different proposals that will likely be introduced.

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Cheektowaga Times: www.cheektowagatimes.com

Make eminent domain fair for all: The Boston (MA) Globe, 8/12/05

Opinion

By David J Barron and Gerald E Frug
Last June, in Kelo v. United States, the Supreme Court ruled that cities can exercise the power of eminent domain to promote private economic development, even though the Constitution prohibits the government from taking private property except for a "public use." Although the decision is legally sound, it has provoked outrage, and Massachusetts legislators have joined the fray by introducing a bill to curtail eminent domain. The proposed legislation, however, would create worse problems than it solved.

People are rightly concerned that Kelo will give cities license to take private homes just to make wealthy developers even wealthier. But the House bill does not respond to that fear. Instead, it identifies certain places — "a substandard, decadent, or blighted open area" — as the only ones in which the power can be used. It may be that this new requirement — given its vagueness — will prove toothless. But if the bill is meant to have bite, it appears to provide protection for those living in middle-class and wealthy neighborhoods while placing no additional limits on the use of eminent domain in poor neighborhoods. In other words, the legislation seems to suggest a simple, unjust rule: If you want to treat people unfairly, make sure it's poor people.

That does not mean that the right solution would be to ban eminent domain for economic development across the board. Eminent domain is a vitally important tool. It is a power that can be abused, as the painful experience in Boston's West End reminds us. But Boston is also a place where eminent domain has been used creatively. Consider the experience of the Dudley Street Neighborhood Initiative, which has enabled a low-income community in Roxbury to reclaim its future. The community confronted a serious problem. Absentee owners held decaying properties that stood in the way of redevelopment plans. The initiative lobbied the city to give it the power of eminent domain. The result of this public/private partnership has been a widely acknowledged improvement in the neighborhood.

But holdouts like the absentee owners in Roxbury can be found in upscale neighborhoods, too. New light-rail projects, waterfront redevelopment plans, and even efforts to promote affordable housing in the suburbs could all be stymied by a flat ban on the use of eminent domain for private development.

If the Legislature were serious about addressing the concerns Kelo raises, it would not pit rich against poor by excluding some prosperous areas from the reach of eminent domain. It would provide real protection for all Massachusetts homeowners while still enabling the government to trump holdouts. If a project would be beneficial to the public as a whole, homeowners in well-to-do neighborhoods should have no more rights to stop it than homeowners in poor ones. At the same time, if a project is a giveaway to a well-connected developer, poor communities should not bear the cost while rich ones receive protection.

State court judges have emphasized in the past that, to comply with the Massachusetts Constitution's own requirement that eminent domain be for a public use, the government must demonstrate that eminent domain will really benefit the public. New legislation could respond to that by:

• Requiring, as Justice Anthony M. Kennedy suggested in his Kelo concurrence, that any exercise of eminent domain for economic development have a primarily public purpose rather than a merely incidental one.
  
• Requiring the government to demonstrate the public benefit through a full-scale financial analysis that could be challenged in court.
  
• Requiring that eminent domain not be used for a solely fiscal purpose and that it instead must be part of a comprehensive land use plan.
  
• Requiring that the affected neighborhood have adequate participation in the planning process, a right that would be backed up by state-provided technical assistance upon the neighborhood's request.
  
• Requiring that the state demonstrate good-faith dealing with the owners of the property targeted for taking prior to exercising the eminent domain power.

These changes would not give new rights to those who live in comfortable neighborhoods while giving nothing to those who do not. Protecting private property is important. But so, too, is ensuring equal treatment. By forgetting that principle, the proposed legislation fails in its effort to address a difficult constitutional problem -- the balance between private right and public need.

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The Boston Globe: www.boston.com

David J. Barron and Gerald E. Frug are professors at Harvard Law School

Eminent Domain and Economic Development in Indiana: 8/10/05

Testimony presented to the
Indiana Interim Study Committee on Eminent Domain

By Samuel Staley
Chairperson Wolkins and members of the committee, thank you for giving me this opportunity to address eminent domain issues in Indiana. I hope my comments today will help clarify key issues in this debate and perhaps even give you some guidance in developing effective public policy for the state of Indiana on the use of eminent domain.

I should mention from the outset that I will be approaching eminent domain primarily, but not exclusively, from the perspective of economic development. I will not address the legal aspects of its use except in addressing the ways federal and state courts have provided state and local governments with relatively more or less discretion in its use. I will leave legal issues to attorneys that specialize in this area of property law.

I. Kelo v. New London and Local Government Discretion
The U.S. Supreme Court has left the door wide open for individual states and cities to use eminent domain for a wide range of purposes. The majority opinion in Kelo v. City of New London was quite clear that federal courts would not invalidate takings of private property by state and local governments as long as those governments followed proper administrative procedures. In essence, the federal court said that “public use” could be, from a public policy perspective, anything the majority of a local government considered important to the public health and welfare.

Many in the planning and economic development community have attempted to trivialize the importance of this decision by claiming the U.S. Supreme Court simply validated what state and local governments have been doing for fifty years.

In 1954, the U.S. Supreme Court upheld the use of eminent domain in Berman v. Parker because it determined that the removal of urban blight served a “public purpose”. “Public use” was not longer limited to public services and facilities with broad access or use by the public. Supporters of broad discretionary authority for local government use of eminent domain claim Kelo simply validated practice established in Berman.

I don’t believe this is accurate. While Kelo did put a federal judicial stamp of approval on eminent domain for economic development purposes, most state and local governments were at least bound by one substantive limit—they had to make a determination of “blight” before the power could be used. As Sandra Day O’Connor noted in her dissent in Kelo, a blight determination at least required local overnments to show that the current land use was negatively impacting the community or neighborhood. In the original meaning, urban blight also meant that the neighborhood would not likely turnaround without direct government intervention.

Kelo removed this limitation at the federal level. In essence, the court said a public use was anything a legislative majority said would benefit the community more broadly. This could be something as narrow as a project that raises more tax revenue than the current use, even if the current use is both viable and thriving.

Communities could use eminent domain to seize a Motel 6 or Holiday Inn if they believed a Ritz Carlton could generate more tax revenues. In short, Kelo laid down legal reasoning that transformed the term “public use” to “public benefit”.

II. Judicial Protections for Private Property
Critics of Kelo are correct when they say that that the new standard makes all private property vulnerable to a taking by government with virtually no substantive constraints. States and localities are bound by procedural requirements, and are required to pay compensation to the land owner, but there is no longer any practical presumptive right to private property. Indeed, the U.S. Supreme Court even allows the transfer of property seized by local governments to be transferred over to new private owners at steeply subsidized rates as long as the local government publicly decides it serves a public benefit.

These concerns are not hypothetical or unique to the circumstances surrounding Kelo. In Eminent Domain, Private Property, and Redevelopment: An Economic Development Analysis (www.reason.org/ps331.pdf), I document with economist John P. Blair examples where cities have declared entire neighborhoods “blighted” because houses had one-car rather than two-car garages, were too small, or too old.

In many cases, the public benefit is dubious at best. In Mesa, Arizona, for example, property with a long-time family business was targeted by another business owner. The city condemned the property so it could be redeveloped by another private business. Closer to home, eminent domain is being used to bulldoze long-time homes and businesses for parking lots for the new Colts stadium, even though research shows the public benefits of sports stadiums are dubious at best.

III. Eminent Domain and Economic Development
So, the time is ripe for the General Assembly to look carefully at the use of eminent domain for economic development purposes. In deliberating on the potential benefits of eminent domain, however, state legislators should keep its role in economic development in perspective. In an article for the Indiana Policy Review (www.inpolicy.org/ Vol16No2.pdf), I observe that private property rights are at the core of market economies. Protecting those rights is an essential task of government. To the extent the General Assembly makes those rights less stable and less secure, economic development will suffer.

Economic development relies on the spontaneous development of private businesses and the willingness of people to move into homes where their lifestyle and livelihoods
are secure. But,

• How secure can someone’s home or business be when state and local governments can seize their property and transfer it to someone else on the
  basis of a simple legislative majority?
  
• Will someone buy a home in a deteriorating inner city neighborhood, invest thousands of dollars in its renovation, or make a long-term commitment to the community if their property can be seized at the whim of the local government or redevelopment authority for high profile projects with questionable benefits?

Oddly enough, no one questions this reasoning when it comes to large investment by large corporations. Their property rights are usually secured by contracts or development agreements with local governments; the idea that a large company would invest in a state or city where their plant could bulldozed at anytime if another company provides a better offer to the local government seems absurd. For some reason, we fail to recognize that families and businesses of all sizes use the same calculus.

IV. Proper Scope for Eminent Domain
Looking at property rights and economic development this way does not imply that eminent domain can never be used. On the contrary, eminent domain may be necessary. But the Founding Fathers (and the U.S. Constitution) envisioned that those circumstances would be rare and the power would be used only when there was a clear and obvious public benefit. Thus, they placed two significant constraints on its application:

• Just compensation to ensure there was a financial cost to seizing property and the victims of eminent domain would be made financially whole;
  
• Public use, meaning the public had broad access to the service provided or that
  a public service would be provided that could not (or would not) be provided by
  the private sector.

The public use constraint has been seriously eroded through judicial interpretation. In fact, I believe it is not longer practically binding on state and local government. The General Assembly must also keep in mind that a number of alternatives to using eminent domain for economic development purposes exist, including:

• Market purchases of land;
  
• Phasing development to accommodate properties at different times in the
  development cycle;
  
• Purchasing easements or options for future development;
  
• Lowering taxes;
  
• Lowering regulatory barriers to development and investment;
  
• Streamlining planning, zoning, and permit approvals;
  
• Providing public infrastructure in a timely and efficient manner;
  
• Mediating land disputes or acquisitions among private property owners; and
  
• Providing loans, grants, and tax incentives.

So, what guidelines should state legislators consider? I suggest four:

1. Require use for public use. The “public benefit” criterion adopted by the U.S. Supreme Court is so vague it lacks any meaningful constraint on government seizures of private property. The General Assembly should consider criteria that, at a minimum, require eminent domain to be used when: a) the general public benefits from general access to the service or facility and b) the private sector cannot provide the public service or facility even though significant benefits will accrue to the community through its development.
   
2. Use as a tool of last resort. Eminent domain should be used only when all other reasonable and voluntary approaches have been exhausted and the failure to acquire the property will prevent the project from moving forward. Eminent domain should not be considered “just another tool” for economic development purposes with the same standing and legitimacy given to other strategies and approaches such as tax incentives.
   
3. Use when faced with imminent public endangerment. Eminent domain should properly be used if the public health and safety are endangered by the current use of the property, and its seizure will materially reduce the danger to public health and safety.
   
4. Ensure that private benefits are incidental to the projects. Eminent domain should not be considered as an alternative strategy for acquiring land and property for private development. All private property owners should shoulder similar burdens and costs to ensure a level playing field.

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Dr Samuel R Staley is Director of Urban and Land Use Policy at the Reason Foundation (www.reason.org) and Adjunct Scholar at the Indiana Policy Review Foundation (www.inpolicy.org)

Eminent domain ruling contested: (Uniontown PA) Herald-Standard, 8/11/05

By Alison Hawkes
A recent U.S. Supreme Court ruling expanding the government's powers to take land has prompted a strong contingent of Pennsylvania lawmakers to try to block the decision in the state. Lawmakers met earlier this week to discuss two bills that would ban local governments in Pennsylvania from taking private property and turning it over to a "nonpublic interest," or for the purposes of expanding a local tax base.

One lawmaker, Rep. Daryl Metcalfe (R-Butler), said the court ruling is so overreaching as to put the very nature of American property rights at stake.

"People are upset. We have been contacted on this second only to the [legislative] pay raise issue. They're wanting us to act," Metcalfe said at a hearing before the House State Government Committee.

At the heart of the debate is the question of how much power local government should have in advancing economic redevelopment efforts. Should a municipality, for example, be able to seize homes on a blighted street and turn the properties over to a developer to build high-end condominiums or a shopping mall? Or, should the government's powers on eminent domain be limited to building highways, schools or other public works?

The recent 5-4 U.S. Supreme Court decision granted New London, Conn., the authority to take seven homes and use the land to assist a redevelopment effort spurred on by a global research center built by pharmaceutical giant Pfizer, Inc.

Since then, nearly half the states are moving to block the ruling. That's possible because the court is allowing states to institute their own bans.

Using the power of eminent domain to advance private development has come up in Pennsylvania before. Pittsburgh tried to take 64 buildings downtown to make way for a new entertainment and shopping development, which failed after department store Nordstrom pulled out.

"In my estimate, this is nothing more than legalized plunder," said the two bills' author, Rep. Thomas Yewcic (D-Somerset), adding that such a power tends to benefit the wealthy and well-connected who can afford to undertake lucrative projects with government backing.

The bills also include a clause that would allow property to revert back to the condemnee or the heirs if the property is ever used for a nonpublic purpose.

Supporters of the court decision, such as the Pennsylvania League of Cities and Municipalities, say the public benefits from redevelopment and that's often achieved by partnering the powers of government with private investment.

York Mayor John Brenner, the league's president, said municipalities engaged in redevelopment need to have the tools to bundle properties together to spur on a large project that has impact. Without the power of eminent domain, urban areas will find it difficult to redevelop and urban sprawl will continue, he said.

"A recurring theme within our state government agencies these days is the encouragement of public-private partnerships to enhance economic development," Brenner said. "This restriction flies in the face of that policy."

Brenner noted that the proposed legislation does not define "nonpublic purposes" and that public taking may cause private gain but still be considered a public purpose. Also, he said municipalities tend to use eminent domain with discretion and restraint.

But Metcalfe insisted that presumptive restraint is not enough.

"You have an eminent domain tool so broad you could basically condemn anything," he said. "We shouldn't have to trust you. We should trust the law because we live in a country of laws and the laws don't protect property rights in Pennsylvania."

Gov. Ed Rendell on Wednesday did not commit to signing legislation restricting eminent domain should it reach his desk.

Rendell, whose own redevelopment efforts include spearheading a $42 million package in state subsidies to help Comcast build a 57-story skyscraper in downtown Philadelphia, said economic redevelopment must be able to move forward.

"There's a balance to be struck here," he said. "I will try to ensure we strike the right balance."

Among the two bills' 101 cosponsors are Rep. Larry Roberts (D-South Union Twp.), and Rep. Jess Stairs (R-Acme).

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Herald-Standard: www.heraldstandard.com

Panel tackles eminent domain: Indianapolis (IN) Star, 8/11/05

State legislators want to make sure property owners are protected under law

By Michele McNeil

The 12-member Interim Study Committee on Eminent Domain will meet again in September to hear more testimony about how governments use their power to take private property for public uses.

The committee plans to meet again in October to offer legislative proposals.

Indiana lawmakers want to make it harder for the government to seize a home or business in the wake of a landmark U.S. Supreme Court case that some fear tramples on property owners' rights.

But the challenge for a legislative committee, which met Wednesday for the first time to study the issue of eminent domain, is to balance private property rights with the economic development needs of local governments.

"(Hoosiers) want to make sure you don't come knocking on their door because someone thinks it's a good place to throw up a strip mall," said Rep. Ryan Dvorak, D-South Bend, who serves on the committee.

At the very least, lawmakers say, they want to ensure Hoosiers get a fair price when eminent domain is used.

In June, the U.S. Supreme Court ruled that a government may use eminent domain to obtain private property that later can be used in a private development if that development is deemed a public benefit.

The case sparked opposition from those who fear the use of eminent domain will be broadened and homes could be seized to make way for a new superstore or parking garage.

Already, Alabama has passed a law barring the use of eminent domain for private development, and at least eight other states are considering similar restrictions.

The legislative committee, which heard more than three hours of public testimony, will meet again in September, and will have recommendations for legislative proposals in October, said Rep. David Wolkins, R-Winona Lake, who is leading the committee and efforts to clarify the state's eminent domain laws.

Eminent domain is typically used to build new roads or a new school or to make way for a utility pipeline. Governments also use eminent domain to buy rundown properties and revitalize a neighborhood. State and federal constitutions require governments to pay if they take land.

But, "Indiana is getting more aggressive," warned Steven Anderson, of the Washington-based Institute for Justice, a national advocate for property owners' rights.

Mishawaka Mayor Jeffrey L. Rea said eminent domain is a tool -- although some lawmakers called it a "threat" -- that helps his northern Indiana city transform rundown areas into revitalized neighborhoods that attract more jobs.

"Eminent domain is used as a last resort," said Rea, who said his city acquired 60 properties to allow for the AM General Corp.'s Hummer plant to expand. Eminent domain didn't have to be used, he said.

In Indianapolis, eminent domain was used to transform a crime-plagued area into Fall Creek Place, the highly successful neighborhood revitalization project on the Near Northside.

Eminent domain also may be used to make way for a new stadium for the Indianapolis Colts.

John Klipsch, the stadium building authority's executive director, said eminent domain is a possibility for three of the last six properties the authority does not own on the site. City officials negotiated a price for two and the authority is working with the U.S. Postal Service on another one.

Negotiations continue with the private owners of the last three properties, and the authority has sent letters to start the eminent domain process, which can take 60 to 90 days, Klipsch said.

Rick Hurst, and his company that sells dry beans to grocery stores, is one of the last three holdouts in the path of the new stadium. His situation illustrates the problem facing Hoosier lawmakers -- how to make sure governments adequately compensate residents who lose their property.

Hurst told the committee the cost of relocating his business far exceeds the appraised value of his company, N.K. Hurst Co. There's the cost -- and difficulty -- of finding another facility that can handle cleaning and packaging millions of beans. And there's the cost of moving his employees or finding new workers.

There's an emotional cost as well. In the 1970s, when businesses and residents were fleeing downtown for the suburbs, he said: "We stayed."

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Indianapolis Star: www.indystar.com

A better answer on eminent domain: Concord (NH) Monitor, 8/11/05

Letter to the Editor

By Christine Anderson, Concord NH
I'd like to be a homeowner someday. I'd like a house with a little land so I can plant a vegetable and flower garden. I'd like a back yard so my cat can roam about, supervised, of course, and where I can sit and enjoy a late summer afternoon.

However, with the recent Supreme Court decision regarding eminent domain, I'm not sure my dream will ever come true. The decision allows the government to seize private property, thereby enabling private businesses and developers to take control. I am appalled that the government believes it is justified in taking private property for development.

Officials claim it is all right if it benefits the community. But isn't each individual home a part of the community? There is no community when they are all gone. The thought of one day losing a home I have worked hard for in order to expand a highway or build a shopping mall is disturbing.

What is the answer for all those who may lose homes and property? I wish I knew. Perhaps fighting tooth and nail is the answer. Maybe chaining yourself to the bulldozer before it approaches or to the giant oak tree you've watched grow over the years will work.

What isn't the answer is what some Weare residents are doing. The Aug. 2 Monitor article by Joelle Farrell discusses the action of several residents in regard to the recent Supreme Court decision. Petitions have been circulated asking for Supreme Court Justice David Souter's eight acres to be turned into a park or a hotel. Although the petitions are aimed at making a statement, there has to be another way. These actions are no different than the government's, which they are opposing.

Being vindictive is not the answer. Standing up for your rights and not giving in are.

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Concord Monitor: www.cmonitor.com

Minnesota needs to restore fairness to eminent domain power: The (Walker MN) Pilot-Independent, 8/9/05

Guest commentary

By Pat Anderson, Minnesota State Auditor
After years of experience in and around local government, I have firsthand knowledge of the extent of local government power. As the Mayor of Eagan, I had the opportunity to help determine the development of a rapidly growing community. And now as State Auditor, I oversee the finances of all local units of government in the state to make sure their actions conform to the powers given to them in the law.

The actions of city councils, county boards and school boards determine everything from the way land in your community is used, the location and width of the roads you drive on, and the class size and curriculum of your public schools.

I believe that most governmental decisions should be made locally rather than at the state or federal level. Governments that are close to the people they serve are best suited to deal with local problems. Local control also makes it easier for citizens to voice their opinions and to hold elected officials accountable.

While the merits of local control are undeniable, any government can abuse its powers. With this fact in mind, our founding fathers adopted the Bill of Rights to protect individual's rights from government intrusion. Unfortunately, following the Supreme Court's recent ruling in Kelo vs. New London, one of those rights, as it has historically been understood, no longer exists.

The Fifth Amendment to the United States Constitution allows governments to take private property for "public use" as long as just compensation is provided. Since our country's founding, the courts have interpreted this amendment to allow governments to take private property for public facilities — roads, parks, government buildings, etc. In the New London case, however, the Supreme Court ruled that local governments may condemn non-blighted private property and take it to make way for other private landowners as part of an economic development plan.

Since the Fifth Amendment is no longer interpreted to protect your private property rights from government takings, your city can now force you to sell your home at a price it determines to be fair. Your only choice is to watch the bulldozers come in and to begin looking for a new home.

The decision is difficult to square with the American tradition of protecting individual rights. In fact, it is difficult to imagine a court decision that could have more harmful effects on the rights of average citizens, the poor and the politically powerless. Revenue-hungry governments can now team up with revenue-hungry big business to bulldoze the homes of average citizens, whose Fifth Amendment protections no longer exist. The Kelo decision is one more example of Americans being forced to surrender their individual rights to ever increasing government power.

Property rights advocates around the country were rightly outraged by this decision.
The backlash to the court decision is widespread and includes efforts at the national and state level. Sen. John Cornyn has introduced a bill that would prohibit federal monies from going to state and local governments that use eminent domain for economic development.

At the state level, a constitutional amendment has been introduced in the Texas state legislature that would ban the use of eminent domain to support private interests. The governors of Georgia and Missouri and legislators in Florida, Oklahoma and New Hampshire have created committees to review eminent domain practice in their states. Movements to restrict the use of eminent domain have cropped up everywhere from New Jersey to Alaska.

It is time for Minnesota to join these other states in acting to restore some fairness to government's eminent domain powers. The Legislature should start by prohibiting local governments from taking property solely for the purpose of increasing their tax revenues.

I am a strong believer in Minnesota's tradition of local control and prefer that most power be exercised at the local level. Fundamental freedoms like property rights, however, are so sacrosanct they must be safeguarded from any government usurpation.

When the courts overreach, it is up to the citizens and our representatives in the legislative branch to secure our rights. Because the Supreme Court has failed, the Minnesota Legislature must act. Full property rights, including protection from eminent domain for non-public uses, should be restored to Minnesotans.

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The Pilot-Independent: www.walkermn.com

Eminent domain ruling draws fire: (Kerrville CA) Daily Times, 8/11/05

By Gerard MacCrossan
Opposition to the U.S. Supreme Court’s June eminent domain ruling is drawing support from both sides of the House of Representatives. Congressman Henry Bonilla’s comments to the Kerrville Noon Rotary Club on Wednesday brought applause for his stance and for proposed legislation that would penalize any governmental entity that employed eminent domain rights to take property for private gain.

“I disagreed with the (Supreme Court’s) ruling,” Bonilla said, adding his response was to file HR 3405 — The Strengthening the Ownership of Private Property Act.

The bill proposes ending federal economic assistance on all economic development projects should any state or local government entity take property from one private party to give to another.

“If you are a community that does this, you will lose all federal funding,” Bonilla said. “The bipartisan support across the board (for this bill) has been found.

“Maxine Waters from California, who is known as a fire-breathing liberal, has signed on,” he said.

Another liberal Congressman, former Democratic presidential challenger Dennis Kucinich of Ohio, is among 19 House members co-sponsoring the bill. Four other Texas congressmen, including Lamar Smith, have signed on, and U.S. Senator John Cornyn has filed similar legislation, Bonilla said.

The bipartisan support, he said, comes from the fear shared by inner city-dwellers that their homes could be taken away as easily as those of the citizens of New London, Conn., under the Supreme Court ruling.

“No city is going to want to lose their federal funds,” Bonilla said, adding his bill is a “creative way” of combating the ruling.

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Daily Times: http://web.dailytimes.com

Eminent domain issue unresolved: San Diego (CA) Union-Tribune, 8/11/05

Residents opposed to National City plan

By Tanya Sierra
[National City CA] officials have been trying for nearly a year to expand the eminent domain area but keep running into persistent opposition.

The City Council, serving as the Community Development Commission, was supposed to give final approval Tuesday night. But the vote was put on hold again – this time for at least two months – because residents raised so many concerns.

Now, Community Development Commission officials will video record the properties included in the proposed expansion area to illustrate what they consider blighted properties.

"It's really important for us to be extremely thorough," said Byron Estes, deputy director of redevelopment. "It's one of those kind of issues that people feel strongly about and we want to work strongly with this community."

City officials want to expand the eminent domain area to include almost the entire redevelopment zone, and first introduced the plan in November. They conducted workshops to answer residents' questions. The City Council tried to vote on the issue several times but met resistance at every step.

Under eminent domain, the city can take over private, nonresidential property within the redevelopment zone. Residents oppose any expansion of that power because they fear their homes are at risk, despite the city's assurances that residential property is not included. Some residents are also arguing that the areas officials consider blighted are not.

City officials say they will use the authority only as a last resort. They say they need it to revitalize the city and remove run-down property.

Still, they made some concessions to ease residents' fears. They cut the length of time the expanded eminent-domain authority would be in effect, from 12 years to eight, and stated more clearly in documents that eminent domain will not affect residences.

A recent U.S. Supreme Court decision that broadened the government's authority to take private property further spooked National City landowners, even though local officials said they are not targeting residences.

The Community Development Commission hired a consultant to perform a blight analysis of the eminent domain area, which concluded that 86 percent of the property within the target area suffers from blight or deterioration.

That finding outraged some business owners, who questioned the city's definition of blighted. At a meeting in June, longtime business owner Mike Filson said his property has always been kept up and that metal siding, when properly maintained, is an effective building material.

"My grandfather was a very resourceful builder," he said in June. "There's nothing wrong with an old building."

CDC officials will use video to document the properties, Estes said.

"We think it's important to examine this," he said.

For now, residents can breathe easy until the fall, when the issue goes before the City Council.

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Union-Tribune: www.signonsandiego.com

Business Owner Fights Eminent Domain For His Business: WGAL-TV8 (Lancaster PA), 8/9/05

A Dauphin County business owner is fighting for his livelihood.

Stanford Cramer said a U.S. Supreme Court ruling earlier this year may clear the way for his business to be taken by eminent domain.

Each year, Cramer's Airport Parking serves more than 50,000 people from its location near Harrisburg International Airport, but the parking lot may not be in business much longer.

The Susquehanna Area Regional Airport Authority, which runs HIA, wants to take the parking lot by eminent domain.

"A few years ago, the words eminent domain had no real significance," Cramer said.

Cramer owns the parking lot and he's taking his fight to keep it to the state Capitol, testifying before the House State Government Committee.

Cramer wants to see House bills 1835 and 1836 passed. Each would limit the power of eminent domain.

"Sadly, I now know that the government, or in our case, a quasi-government authority, can take away someone's property for far less noble reasons. Now I know more than I ever wanted to about the eminent domain process," Cramer said.

State Rep. Tom Yewcic, of Somerset County, introduced the bills in response to the U.S. Supreme Court's decision to broaden the uses of eminent domain.

"It's always been thought that public uses was a reference to roads, bridges, courthouses and prisons. Today, it can mean casinos, condos or other private interests," Yewcic said.

York Mayor John Brenner, who also testified, wants legislators to proceed with caution.

He said limiting eminent domain limits revitalization.

"Cities cannot afford to lose this last resort and sometimes only option to proceeding with redevelopment." Brenner said.

As for Cramer, the bills going through the Legislature may not be a help in his case, but he said he'll keep fighting.

The airport is not saying why it wants the land.

Cramer said HIA already seized 5 acres of his land by eminent domain back in 2001.

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WGAL-TV8: www.thewgalchannel.com

Property-rights group readies eminent domain initiative: The Oregonian, 8/10/05

Associated Press
Voters in 2006 could be asked to limit the government's power to take private property.

Oregonians in Action, the state's leading property rights group, filed paperwork Tuesday with the state elections office for a November 2006 ballot measure that would allow governments to condemn property only if they plan to use it themselves — not turn it over to private developers.

The issue gained national attention in June when the U.S. Supreme Court ruled local governments can force owners to sell land for economic development projects that benefit the public.

The proposed initiative needs 75,630 signatures to make the ballot.

"We want to nip it in the bud before it becomes a problem here," said David Hunnicutt, director of Oregonians In Action. "People want to feel somewhat secure they're not going to have their property taken because the local government decides another business would be a better use."

Hunnicutt's group scored a major victory in the November 2004 election, when its Measure 37 was backed by 61 percent of voters.

The measure allows property owners affected by land use restrictions that were passed after they bought the property to either ask for an exemption from the rules, or compensation for any loss in property value that was caused by the regulations.

The condemnation issue is unlikely to be as contentious. Land-use planning advocate 1000 Friends of Oregon is fine with limiting condemnation power — depending on the details, director Bob Stacey said Tuesday.

The initiative would protect homes, businesses, farms and forests from condemnation for private projects. Governments could still buy land for utilities or transportation facilities that are privately operated.

Legislators considered similar bill in the session that ended last week. The bill cleared the House, but senators said the issue needed more deliberation.

"It was too complicated, too late," said Sen. Charlie Ringo, D-Beaverton.

Legislators who supported the condemnation bill are likely to campaign for it during election season. Rep. Wayne Krieger, R-Gold Beach, said he doesn't want private companies pressuring government officials for land.

"It's a horrible situation to put these people in," Krieger said. "We need to stop it, and we were in a position to do that."

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The Oregonian: www.oregonian.com

York mayor testifies on eminent domain law: (Hanover PA) Evening Sun, 8/10/05

Brenner urges lawmakers to reject proposed legislation

By Richard Fellinger
York [PA] Mayor John Brenner urged lawmakers to reject new bills that would limit a local government's power to use eminent domain, saying the bills would make it harder for cities to fight blight.

Brenner testified Tuesday before the House State Government Committee on a pair of bills proposed by state Rep. Thomas Yewcic (D-Cambria).

Yewcic is bothered by a controversial decision in June from the U.S. Supreme Court, which ruled that New London, Conn., had the authority to seize homes for a private development project. But the court also ruled that states are free to ban the practice, and Pennsylvania is one of many states considering new restrictions on when eminent domain can be used.

Yewcic's bills state that local government has no power to take property by eminent domain in three cases: when the land would be turned over to a nonpublic interest, to increase the local tax base, or without a "reverter clause" that would give the land back if it is ever used for a nonpublic purpose.

Brenner, who is also president of the Pennsylvania League of Cities and Municipalities, described eminent domain as an economic development tool that would be threatened if the state restricted its use.

Years of legal precedent support the idea that "private use can be for the public good," Brenner said.

In York City, eminent domain was used recently to seize a blighted home on Thomas Street and clear the way for a block of new family homes, Brenner said.

"If the power of eminent domain is taken away or restricted, our urban centers will find it difficult to revitalize and urban sprawl will continue," Brenner said.

Conservative lawmakers such as Rep. Daryl Metcalfe (R-Butler) sparred with Brenner and said the state needs to restrict eminent domain.

Metcalfe criticized Brenner for his frequent use of the term "blighted property" in his testimony. Metcalfe said the term is often used by local officials who want to use eminent domain in a heavy-handed way.

Brenner said most local governments in Pennsylvania use eminent domain "as a last resort" for vacant properties.

"And most of us use it rarely," Brenner said.

Yewcic said local government should only use eminent domain for public use, and he blasted the Supreme Court ruling as "a decision to emasculate our property rights."

"I have always believed, as I was taught in school, that property rights are essential to a free society," Yewcic said.

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Evening Sun: www.eveningsun.com

Deterring eminent domain: Rolla (MO) Daily News, 8/9/05

Bill would punish cities that take private land for private development
U.S. Rep. Jo Ann Emerson is supporting a bipartisan bill that would punish cities that use eminent domain powers to take private property for commercial use.

The proposed bill follows last month's U.S. Supreme Court ruling that allowed New London, Conn., to condemn private property for commercial development.

"If we could overturn the Supreme Court decision, we would," Emerson said.

The legislation would cut off federal funding to cities that use eminent domain for anything other than public good, Emerson said during her Farm Tour stop in Rolla Monday.

"Cities that seize land for private development would never get any more federal dollars - highway funds or anything," she said.

"That's a pretty strong incentive."

Emerson said she is confident the bill will get passed.

"It will pass in a nanosecond," she said.

Rolla Development Director John Peterson said he fears the bill is a knee-jerk reaction to the court's decision.

"There are all sorts of reactions out there," he said. "It's real easy to react with hysteria and sometimes they throw the baby out with the bath water."

At first glance, Peterson said the legislation seems "a little extreme."

Eminent domain has not been used in Rolla but the threat lingers over land at the corner of Highways 72 and 63.

Rolla has proposed development there that would use tax-increment financing, a tool that captures tax revenues to recover development costs.

Eminent domain can be used to take property in that area if property owners refuse to sell, however Mayor Joe Morgan said that it would be a last resort.

He declined to comment about the proposal because he had not seen the bill.

Peterson said he does not agree with using eminent domain power to take private property and give it to a private developer unless the area is "blighted."

Information released about the legislation does not mention "blighted" areas and a spokesperson for the bill's sponsor, Congressman Henry Bonilla of Texas, could not be reached to clarify the proposal.

If the proposal does not allow room to condemn blighted areas, Peterson said the legislation could be damaging to a city's economy.

"A law like that would greatly hinder a city's ability to take hold of the future and its own fate," he said.

Peterson said the Highway 72, Highway 63 area is blighted.

"There's been a finding of blight for that area, but there's also the common sense smell rule," he said. "Does it look blighted? I think a reasonable person would look at those 10 acres and say, 'Yes, it's blighted. I wouldn't want it in my backyard.' We talk about taxes and jobs, but in reality those are not the findings. It's a finding of blight."

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Rolla Daily News: www.therolladailynews.com

Bill seeks to restrict eminent domain: Boston (MA) Globe, 8/9/05

Blighted areas could be taken

By Scott S. Greenberger
A bipartisan group of state lawmakers, spurred by a recent US Supreme Court ruling, is pushing a measure designed to curb the power of Massachusetts cities and towns to take private property to make way for private economic development.

The move will face strong resistance from local leaders and agencies such as the Boston Redevelopment Authority, who fear that restricting the power of eminent domain will hamper their efforts to rejuvenate rundown neighborhoods. In Massachusetts, cities and towns can generally force the sale of private property to promote economic development if they can show that the development will benefit the public through job creation or expansion of the tax base.

Under the measure authored by Representative Bradley H. Jones Jr., the House Republican leader, municipalities would be prevented from taking private property for private development except in cases where the property is "a substandard, decadent, or blighted open area" under state law.

Geoff Beckwith of the Massachusetts Municipal Association, which lobbies for cities and towns, says the law would handcuff local officials.

"Why blunt that tool? Why take it away, especially since the decisions are being made locally?" Beckwith said. "You have to feel for people who want to stay in their homes and like where they are. But if an area has lost thousands of jobs and developing that area would create thousands of jobs and commerce in a community, there is a broader public interest."

In a ruling that generated outrage across the political spectrum, the Supreme Court decided at the end of June that New London, Conn., officials could force the sale of houses in a depressed neighborhood to make way for office space, a hotel, new houses, and a walkway along the Thames River. The owners of 15 houses in the Fort Trumbull neighborhood refused the city's offer of compensation, and after their houses were condemned, they filed a lawsuit challenging the city's plan.

Cities and towns across the country have long used their eminent domain powers to take houses, with compensation, for roads, bridges, schools, and other projects with obvious public benefit. In recent years, Massachusetts courts have held local officials to a relatively high standard of what constitutes the public good. In a 2000 case, for example, a Superior Court judge prevented Springfield from taking private land to build a minor league ballpark.

But this year, writing the majority opinion in Kelo v. New London, Justice John Paul Stevens wrote that New London's "determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference" and that "the city has carefully formulated an economic development plan that it believes will provide appreciable benefits."

But Stevens also said that states may use their own constitutions and laws to limit eminent domain powers. Delaware and Alabama have done so since the ruling, explicitly restricting cities' eminent domain powers to takings for public projects. Ten other states are considering limits, according to the National Conference of State Legislatures.

In Massachusetts, the prospects for legislation tightening eminent domain appears strong. The House already has approved a nonbinding resolution condemning the Supreme Court's decision, and Jones's proposal has 47 cosponsors from both the House and Senate. He is offering it both as legislation, which could be passed immediately, and an amendment to the state Constitution, which would take several years but would offer more permanency.

"We had a revolution that started in Massachusetts a long time ago because we didn't want a sovereign making arbitrary decisions without our involvement," said Jones, of North Reading. "Potentially, with the power of this eminent domain, you could have three people on a board of selectmen or a town meeting or city council deciding they want to do something. People are concerned and don't see the real necessity of that."

Kimberly Haberlin, a spokeswoman for House Speaker Salvatore F. DiMasi, said he has "always been a very strong supporter of individual property rights" and that the issue for the House will be "how we define the larger common good." A spokeswoman for Senate President Robert E. Travaglini said he needs more time to review the Jones bill.

Julie Teer, a spokeswoman for Governor Mitt Romney, said the governor "supports Brad Jones's bill and believes it's essential that in light of the recent Supreme Court ruling we take action to protect citizens from the government taking of private property for economic development."

Two famous examples of Massachusetts land takings, the elimination of four townships a century ago to make way for the Quabbin reservoir in central Massachusetts and the bulldozing of Boston's West End in the 1960s in the name of urban renewal, are now routinely lamented.

But Beckwith says those episodes are the exceptions, and that Massachusetts already has strong laws in place to prevent local officials from abusing their eminent domain power.

Susan Elsbree, a spokeswoman for the BRA, pointed out that the agency, which derives its powers from federal standards laid out during urban renewal efforts of the 1950s and 1960s, currently has to prove that an area is blighted before taking it. "We're wary of any additional legislation that seeks to curtail powers that already exist," she said.

"We don't feel like it's necessary, because we do use it . . . within certain legal parameters of decadence and blight," Elsbree said.

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Boston Globe: www.boston.com

Bills Will Curb Eminent Domain Abuse in PA: The (PA) Commonwealth Foundation, 8/10/05

News Release

Commonwealth Foundation testifies before the House State Government Committee
Last week, Alabama became the first state to give its citizens stronger protections against eminent domain for private profit in the wake of the U.S. Supreme Court’s decision in Kelo v. City of New London. On Tuesday, the Pennsylvania House of Representatives’ State Government Committee heard from the Commonwealth Foundation on legislation (HB 1835 and HB 1836) that would also curb the abuse of eminent domain in the commonwealth.

The Kelo Case gave governments at all levels throughout Pennsylvania the power to seize homes, small businesses, churches and other property to benefit private interests without violating the U.S. Constitution. Instead of giving meaning to the Constitution’s “public use” limitation on the power of eminent domain, the Court left it up to states and municipalities to protect home and small business owners from seizure for private development.

“It is now up to Pennsylvania policymakers to protect the private property of citizens across the commonwealth by limiting the power of eminent domain by government to take private property for private uses,” said Matthew J. Brouillette, president of the Commonwealth Foundation, a public policy research and educational institute based in Harrisburg.

Brouillette commended Rep. Tom Yewcic (D-72) for introducing bills that would better protect Pennsylvanians from having their property taken for the benefit of other private or commercial purposes. He did, however, encourage Rep. Yewcic to “close the loopholes” in his legislation that would still permit governments to misuse and abuse the power of eminent domain.

“Unfortunately, the term ‘nonpublic interest’ is far too vague and can be interpreted loosely so as to effectively leave the current state laws unchanged,” Brouillette told the Committee. He argued this term, as well as the term “blighted property” and the “reverter clauses” must be clearly defined and fully explained.

The “reverter clauses” in HB 1835 and HB 1836 would require property taken through eminent domain to be returned to the condemnee if the property is used for a nonpublic purpose. However, Brouillette noted that New York has a similarly nebulous reverter clause which allowed the courts to find that land originally taken for a school and then given to a private corporation was still a public use because the new industry would be good for the city. “Pennsylvania laws on eminent domain should anticipate such attempts to circumvent the spirit and intent of the judiciary, particularly given its recent and traditional proclivity to ignore Constitutional restraints and prohibitions,” said Brouillette.

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The Commonwealth Foundation: http://commonwealthfoundation.org

Speak out against eminent domain: Ft Wayne (IN) Journal Gazette, 8/8/05

By Kenn Gividen
On Wednesday, Hoosiers will have the opportunity to voice their views on eminent domain.

A hearing hosted by the House Summer Study Committee is scheduled for 1 p.m. in the auditorium of the Government Center South in Indianapolis. Plans for the hearing were prompted by a recent Supreme Court decision that determined local governments have the constitutional right to force you to sell your property to a private organization for non-public use.

There are several reasons why Hoosiers should voice their opinions on Wednesday.

• Cronyism. While Indiana may be the heart of the Bible belt, it’s not exempt from political favoritism, dirty tricks and punitive maneuvering.
  
  Anyone who dares oppose city hall will risk the wrath of corrupt local bureaucrats willing to use eminent domain laws to exact revenge. Community activists who fall out of favor with government officials may find their homesteads bulldozed to make room for a Biggy Burger franchise, Holiday Inn or whatever is deemed to be “in the public interest.”
  
  
• Reality. The prospect of property owners being bullied into selling to private developers is more than a future prospect. It’s already happening.
  
  There are six states – Connecticut, Kansas, Maryland, Minnesota, New York and North Dakota – that permit local governments to effectively confiscate private property for economic development. What’s more, the Arkansas, California, Florida, Illinois, Kentucky, Maine, Montana, South Carolina and Washington allow private property in “blighted areas” to be condemned for private redevelopment.
  
  In recent months, local governments in Indiana have begun following suit.
  
  In Indianapolis eminent domain was threatened in hopes of bulldozing a 60-year-old business. The reason? The city-county council says it needs the space for a parking lot for the new Colts stadium.
  
  And when the Indianapolis city bureaucrats grew weary of negotiating with the owner of a parking garage, they simply condemned his property. The city plans to sell the land to a private developer.
  
  Another example can be found in Mishawaka. When a new car manufacturer wanted to expand its facility, county officials used the threat of eminent domain to force the owners of 51 homes to get out of the way. That was five years ago.
  
  
• Ineptness. One needs look no further than a local license branch to discover that good intentions don’t make for good planning.
  
  Consider, also, that local governments in Indiana have a long history of overspending on “public” works projects. Even Gov. Mitch Daniels acknowledges that the spending binge for government school facilities is excessive. In Wayne County, taxpayers cringed when local officials spent nearly $29 million for a new jail project.
  
  When the Republican-controlled General Assembly granted counties the right to impose food and beverage taxes, many eagerly obliged. Local governments will also move ahead with enthusiasm if given the green light to abuse eminent domain.
  
  
• Unfairness. The motive to abuse eminent domain is simple: It will increase revenue by reassigning real estate to those who will pay higher taxes. Low-income families are the logical targets.
  
  One example was seen in New London, Conn., where local residents were forced to sell their modest homes. According to the Institute for Justice, “The city handed over its power of eminent domain – the ability to take private property for public use – to the New London Development Corp., a private body, to take the entire neighborhood for private development.”
  
  One resident, Susette Kelo, sued the New London Development Corp. for the right to retain her home. The case was heard by the U.S. Supreme Court. Kelo lost her case.
  
  In the wake of the Kelo v. New London, Conn., decision looms a threat to every property owner in Indiana. A local government can force a resident to sell his or her property to a private body. Unless, that is, Gov. Daniels and the Indiana state legislature take the necessary steps to prevent it.
  
  Or, as former Justice Sandra Day O’Connor said, “The specter of condemnation hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory.”

On Wednesday, your voice can help make the change.

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Ft Wayne Journal Gazette: www.fortwayne.com/mld/journalgazette

Lawmakers to face eminent domain issue: Bangor (ME) Daily News, 8/8/05

Maine lawmakers will be asked to clarify state law to ban the taking of private property through eminent domain for private economic development - a power that was authorized by the U.S. Supreme Court in a Connecticut case.

"This has pricked the nerves of a lot of Maine people," said Sen. Barry Hobbins, D-Saco, co-chair of the Legislature's Judiciary Committee. "We need to look at what needs to be done to make sure that can't happen in Maine."

The U.S. Supreme Court, ruling 5-4 in June, said local governments may force property owners to sell out and make way for private economic development when those local governments decide it would benefit the public.

The justices also made it clear the states could ban such practices.

"Of course we should ban this," Rep. Henry Joy, R-Crystal, said Friday. "I have had people come up to me and ask, 'What is this country coming to?' People are really upset about this ruling, and I think the court made a mistake."

Joy said he would ask legislative leaders to allow consideration of legislation that would clearly ban such activity in Maine by state or local government.

State Attorney General Steven Rowe sent what he called an "informational" letter to lawmakers July 22, explaining the court decision and what he believes it will mean for Maine.

"It is not an opinion," Rowe said last week. "We were not given a set of facts that we could apply and give an opinion [on]. My letter was a response to requests for information I had received from a number of members of the Legislature."

In his letter and in a subsequent interview, Rowe stressed Maine's constitution has language dealing with the issue that differs from the federal constitutional provision.

He also said there have not been many state supreme court rulings interpreting that language.

"I think the attorney general is correct," Hobbins said. "I don't think anyone can say what would happen in Maine with a similar case to the one in Connecticut."

Hobbins, an attorney, has had cases dealing with eminent domain, but he said cases in Maine have mostly dealt with compensation for land taken, for example, to build a road. He said the sort of "take private land to build a Wal-Mart" case has not occurred in Maine.

Joy said the attorney general's letter was only Rowe's view, "and I think this needs to be clear."

A private development taking could occur in Maine, Joy said, "and we need to make sure it can't happen."

Rep. Deborah Pelletier-Simpson, D-Auburn, Hobbins' Judiciary Committee co-chair, said the committee will review eminent domain legislation carried over from the spring session of the Legislature. She said Mainers are not totally without some legal protection under current state law.

"It seems clear that you can't have your home taken without your permission," she said, "but we have to look into the other areas."

She said that law may not provide protection for someone owning land that a city or town may decide it wants for economic development.

The committee has two bills before it, but both deal with compensation for takings under eminent domain proceedings.

Both committee leaders believe the wider issues can be discussed and a bill introduced if the panel decides legislation is needed.

"We may have to draft specific legislation," Hobbins said, "but I don't know that is needed until we review all of the laws involved."

Rowe has provided lawmakers with a list of 68 state laws dealing with the power to take private property. They range from giving the governor power to take property for national defense to allowing local cemetery districts the power to take land for cemeteries.

Maine is not alone in considering changes. The Washington, D.C.-based Institute for Justice has determined 21 states have already banned takings for private purposes, or are considering changes in state laws.

In addition, lawmakers in Texas, Florida, Oklahoma, New Jersey and Michigan are considering constitutional amendments prohibiting eminent domain for private development purposes.

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Bangor Daily News: www.bangornews.com

Eminent domain: Northeast Mississippi Daily Journal, 8/8/05

Editorial
There is little question that the concept of eminent domain has been greatly expanded through the years.

Originally intended as a means of ensuring that projects of public necessity, such as roads or other public works construction, would not be held up by one or two recalcitrant landowners, the legal concept is now regularly used for private developments held to be in the public interest.

Last week, several Mississippi House leaders announced they would sponsor legislation to prohibit the use of eminent domain to take property for the benefit of businesses.

Eminent domain allows governments to take property for a fair market price - even when the owner doesn't want to sell - if it's deemed in the broader public interest to do so. The site for the Nissan plant in Canton was secured through the process when some landowners didn't want to sell. Because its impact on the economy and thus the tax base was significant, the state exercised its powers of eminent domain.

Those powers were recently upheld by the U.S. Supreme Court, which ruled a Connecticut city could use eminent domain to uproot residents in an old and stable neighborhood in favor of an upscale residential and commercial project that would increase the local tax base. This was one of the more overtly strong-armed uses of eminent domain to benefit private developers, and it was impossible not to feel empathy for the uprooted homeowners.

But any efforts to restrict eminent domain must be carefully weighed. When used with judiciousness, it can be a critical tool in economic development and in transforming blighted areas.

Eminent domain likely won't have to be used to secure the property necessary to complete the Wellspring industrial site near Blue Springs, because options have been negotiated on the needed property. But theoretically, without eminent domain one property owner could prevent a huge industrial employer from coming to the site and providing jobs to hundreds or even thousands of Northeast Mississippians.

Similarly, projects like the Fairpark District in downtown Tupelo could not have proceeded without eminent domain as a tool. Although private developers will certainly benefit from Fairpark's success, the city ultimately will gain significant new tax revenue and a languishing area that had been officially designated "blighted" will become a public and community asset.

Property rights are among the most central to a free society. That is the point of the House sponsors of the eminent domain legislation, and they're right that those rights must be taken very seriously.

But any law must be carefully constructed to make room for those rare cases where the public benefit outweighs the property owner's right to stand in the way of a project. The Connecticut situation seemed to be a case of governmental overreaching, but others may not. The policy key is in knowing and acting on the difference.

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Northeast Mississippi Daily Journal: www.djournal.com

Kelo case stirs passions on eminent domain: Columbia (MO) Daily Tribine, 8/8/05

Sometimes nothing promotes a cause like losing.

That’s what appears to have happened to the property rights movement, thanks to the backlash over the Supreme Court’s June 23 ruling on eminent domain, the government’s power to take property for public use.

"I can’t think of a reaction from both the left and the right in recent decades that’s like this case," said University of Wisconsin political scientist and law Professor Donald Downs.

The high court ruled 5-4 that when it comes to eminent domain, public use can include economic development, even private development, so long as it serves a public purpose.

The outcry over Kelo v. City of New London, Conn., has been fast and unflagging, with politicians of all stripes assailing the decision and drafting bills to curb the use of eminent domain.

The ruling managed to strike nerves across the populist spectrum, stoking conservative suspicion of government, liberal suspicion of corporate interests and unfettered development and fear among the urban poor of displacement.

On the right, House Majority Leader Tom DeLay, R-Texas, called the decision "horrible." On the left, Ralph Nader called it "unconscionable." Rep. James Sensenbrenner Jr., R-Wis., introduced a bill to withhold federal funds in cases where eminent domain is used for economic development.

The bill’s 126 sponsors are mostly Republican but include such Democrats as Dave Obey of Wisconsin, John Conyers of Michigan and Maxine Waters of California.

The libertarian group that lost the court case, the Institute for Justice, decried the decision as a sweeping setback for property rights.

But the group has been declaring political victory ever since its legal defeat.

"I think it’s going to mobilize people at the state and local level to enact significant changes to eminent domain," said Steven Anderson of the firm.

"This is very simple," he said. "Does the government have the right to take your property because someone else claims they’re going to do something better with it? That resonates with everybody."

The public’s one-sided reaction to the ruling has led to a fairly one-sided political debate about the case.

"I think a lot of public officials like the ruling," said Downs, an expert on the Supreme Court, but "it’s sort of hard for a public official to come out and say, ‘I support the power of the state against these homeowners.’ It’s a hard position to take."

One politician willing to make that case is Washington, D.C., Mayor Anthony Williams, who has been trying to use eminent domain to revitalize a shopping area in the District of Columbia.

During a meeting with reporters in the capital last week, Williams called the court decision "limited" in scope and said it effectively preserved rather than expanded the current use of eminent domain.

Williams also accused critics of feeding off a "nightmare" scenario in which "all of a sudden the evil mayor is going to come in and he’s going to kick them off their property and he’s going to turn it into a Ritz-Carlton because it’s higher-income generating."

The mayor went on:

"No elected official ... on the spur of the moment because they had a headache one morning would go out and just start taking people’s property. You’ve got state restrictions, local restrictions, all kinds of regulatory restrictions. You’ve got 18 neighborhood groups for every issue. ... Any government power can be abused. That doesn’t mean it shouldn’t be in the toolkit."

Yale law Professor Robert Ellickson, an expert on property rights, said one irony of the fallout over the Kelo decision is that eminent domain has not been abused in recent years on the scale it was in the urban renewal days of the 1960s and 1970s, when there was less political outcry over the uprooting of far more people.

Ellickson said the fallout over the Kelo case suggests "less confidence in government now than there used to be."

The scholar also argued that Kelo, because of the unexpected narrowness of the decision and the cautionary language of the majority opinion, does more to actually limit the exercise of eminent domain than expand it.

"It moves the law much more in favor of landowners than it was before, even though in this case the landowners lost," said Ellickson.

The decision’s critics disagree with that. Anderson of the Institute for Justice said the ruling opens a "Pandora’s box" when it comes to the takings clause of the Fifth Amendment. In her dissent, Justice Sandra Day O’Connor protested that "under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded."

But it’s the political reaction to the case that might have the biggest impact on how eminent domain is used in the future.

"A lot of government officials are probably going to be pretty careful about using this power because of political fall-out, and that’s a good thing," said Downs, of the University of Wisconsin.

In the weeks since the court ruled, the states of Alabama and Delaware have passed laws on eminent domain, and bills have been drafted or introduced in more than a dozen other states.

"Come January, there will be 40-plus states in session. You will see bills in most if not all of those states to address the issue," said Larry Morandi, who follows land use issues for the National Conference of State Legislatures.

As Morandi notes, that list includes "red" states and "blue" states as well as states whose legislatures are controlled by both Republicans and Democrats.

"It’s not a partisan issue," said Morandi.

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Columbia Daily Tribune: www.columbiatribune.com

Eminent domain: Seize a church, build a mall? The First Amendment Center, 8/7/05

By Charles C. Haynes
Forget Ten Commandments displays and prisoners’ rights — the religious-liberty issues before the Supreme Court last term. It’s “eminent domain” that has stirred up the most reaction among religious groups.

The case — Kelo v. City of New London — involved the Fifth, not the First, Amendment (specifically, the “takings” clause: “nor shall private property be taken for public use, without just compensation”). But the fallout from the Court’s ruling could have a significant impact on the free exercise of religion.

The facts in Kelo are straightforward. The city council in New London, Conn., wanted to use its power of eminent domain to take nine homes from their owners in order to develop private office buildings. The proposed seizure was part of an economic-development plan to create jobs and increase tax revenue.

On June 23, the Supreme Court ruled 5-4 that taking these homes to promote economic growth was permissible public use under the Fifth Amendment — even though the private property goes to another private owner.

Although the Court has previously defined “public use” broadly as “public purpose,” the Kelo decision expands the use of eminent domain as a means to promote economic development.

That’s what has some religious groups worried. With cities and counties looking for more tax revenue, tax-exempt religious institutions are inviting targets. According to the Becket Fund for Religious Liberty, “the power to condemn houses of worship, soup kitchens, and homeless shelters under Kelo is boundless.”

If you find it hard to imagine local governments seizing churches or synagogues to build shopping malls, then consider the current zoning conflicts involving religious institutions around the nation. Government officials are increasingly insensitive or even hostile to houses of worship, passing ordinances excluding them from various neighborhoods or restricting their ability to expand.

Zoning, of course, isn’t “taking” — and attempts by governments to seize church property are still fairly rare. But as Cottonwood Christian Center in Los Alamitos, Calif., discovered in 2000, when local governments want more revenue, churches are fair game. Cottonwood spent several years fighting the city’s attempt to take church land (purchased to build a larger place of worship) and sell it to Costco Corp. for a big store. After much litigation, the case was finally settled last year when the church agreed to build on another piece of property in the same area.

St. Luke’s Pentecostal Church in North Hempstead, N.Y., didn’t fare as well. After years of worshiping in a rented basement, the congregation was finally able to buy a piece of property where it could build a church. Through a series of convoluted actions, the city managed to condemn the property for private retail development. The church battled back in court only to lose its case — and its land — in 2002.

Meanwhile, in East St. Louis, Ill., the Masjid Al-Muhajirm mosque bought land to build a place of worship. Unfortunately for the Muslim community, a group of developers coveted the land for a residential complex. When the mosque wouldn’t sell, the developers persuaded the government’s development authority to condemn the land in 1999. Although the government admitted that the purpose of the condemnation was to transfer private land to another private party, it argued that doing so was a valid “public use” because the land was blighted. The Muslims won in the trial court, but lost on appeal. In 2001, the developers got the land.

If a modest number of religious groups had problems pre-Kelo, many more can expect property takings post-Kelo. Although the First Amendment, federal law and public opinion still help shield houses of worship, the loss of Fifth Amendment protection is seen by many religious leaders as a real threat to religious freedom.

Religious groups are now joining forces with other opponents of Kelo to support legislation on the federal and state levels that would discourage eminent-domain abuse. (Some states already have such laws.) A bill introduced last month by Sen. John Cornyn, R-Texas, would prohibit any government entity that accepts federal aid for a development project from using eminent domain to promote economic growth. Given the public backlash against Kelo, prospects for passage could be good.

Unlike the many culture-war conflicts that divide Americans, the fear of losing property unites people across religious and ideological lines. Justice Sandra Day O’Connor’s dissent in Kelo — a blistering parting shot — has already become a rallying cry for opponents of the majority decision:

“Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.”

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First Amendment Center: www.firstamendmentcenter.org

Charles C. Haynes is senior scholar at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209; email: chaynes@freedomforum.org

A ‘nonsense’ case of eminent domain: Portsmouth (NH) Herald, 8/7/05

By Elizabeth Dinan
Evelyn Marconi was a fisherman’s wife and pregnant with her fourth child in the early ’50s when her family’s Puddledock home was taken by eminent domain.

Today, a month after the Supreme Court ruled that municipalities can take private property for public gain, Marconi is "scared to death (eminent domain) is going to raise its ugly head again."

Established over an entire city block and bordered by Charles, Marcy and Liberty streets, as well as Newton Avenue, the sprawling colonial Marconi residence was circled by a white picket fence in the early 1950s. It was "a perfectly beautiful home," Marconi remembers.

Holding a black-and-white photograph of the homestead, she recalls when she and her late husband, Geno, bought the place.

It was 1951, she says, "just before they started the nonsense."

The "nonsense" was called urban renewal.

"In 1952, urban renewal was running rampant in the city of Portsmouth," she recalls. "They were kicking people out of their homes and using the excuse that it was either a health hazard or a slum."

But as the old photograph proves, the Marconi home was neither.

Regardless, the city notified the Marconis it was taking their property by eminent domain for the development of Strawbery Banke, a historical tourist attraction.

"It was going to be a boon to the city of Portsmouth and clear up a slum - quote, end quote - and dispose of the terrible Puddledock area," Marconi says. "It was primarily a Jewish section and there were junk yards galore. I admit some areas were run down, but they were decent people."

History shows that ridding the South End neighborhood of junk yards trumped the decency of property owners. It also shows that "perfectly beautiful" homes, like the Marconis’, were ripe for the taking.

"In 1953, Cecil Charles Humphries put into the New Hampshire Legislature eminent domain law," Marconi says. "The law passed so swift it would’ve made your hair curl. And when it became law, we received notice that we had two weeks to vacate the premises."

By then, Marconi had four children - including her newborn daughter Francesca - a mortgage on the home she was losing and "no cash." It was the same time the city informed the Marconis that if they wanted to continue living in their own home, they’d have to pay $250 a week.

The city also made an offer of $11,000 for the property. Marconi says the fence alone was worth $10,000.

So they ignored the offer, moved the family across Marcy Street to Marconi’s mother-in-law’s home and hired a pair of lawyers.

They were then issued a "no salvage" order, meaning they couldn’t remove pieces of their home. Meanwhile, some locals took to looting.

"I stayed over there with my little baby and watched them tear my house down," she says. "And I watched local people go in and steal my chandeliers and pull up my hardwood floors."

She also watched as a demolition team struggled with the railroad tie-reinforced cement foundation, which remains on Strawbery Banke grounds today.

"They found out just how well that house was built. They could never get that foundation destroyed," Marconi says. "We refer to it as Marconis’ revenge."

Because eminent domain was New Hampshire law and the Marconis were becoming its first victims, legal advisers suggested their only recourse was to take their case to a judge and plead for more money.

It worked.

They won "a sizable amount of money," Marconi says, declining to be specific.

"The next day the city called and said they were short on money and couldn’t pay," she remembers. "I said, ‘"That’s OK, I’ll take the $1,000-a-month interest on it.’"

In the meantime, Thomas "Bim" Dale, the son of former Gov. Charles Dale and also one of the Marconis’ attorneys, died. Marconi says Charles called their home before the funeral to say Bim wanted his Mechanic Street real estate offered to Geno Marconi "because he’ll appreciate it."

As Marconi recalls the dying wish, she makes the sign of the cross.

So the Mechanic Street property, then an electrical device business, was purchased for a friendly fee and rehabilitated into the Marconis’ new family home upstairs and Geno’s restaurant on the ground floor. And the family was eventually paid in full.

In the five decades that have passed, Geno’s waterfront restaurant has been known for its chowder and sandwiches. It’s equally recognized as a lure for visiting Republican heavyweights, including U. S. presidents who stop in to pay homage to Marconi, now an influential, tell-it-like-it-is player in the first-in-the-nation state.

Up the street at Strawbery Banke is an American elm bearing a brass plaque memorializing Geno. When Marconi looks in at the historical visitors center and sees a new restaurant, she remembers when the exact spot was Morris Cohen’s shoe repair shop.

Looking back, Marconi remains astonished that eminent domain took her family home.

"I kept saying, ‘This can’t happen. This is America,’" she says.

The deed remains in a safe deposit box.

"All I know is that they took the world from my parents," daughter Francesca says.

Looking ahead, in light of last month’s Supreme Court eminent domain decision, Evelyn Marconi makes a prediction for Portsmouth, the city where her family has lived for four generations.

"I think it’s going to raise havoc with private property owners," she says. "And I’m betting they will take the Pier II (former restaurant) from the developers for the riverfront walk."

Marconi also cautions against duplication of her family’s eminent domain saga, advising, "you’ll never build anything successful on the tears of other people."

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Portsmouth Herald: www.seacoastonline.com

Lawmakers plan eminent domain response: Hattiesburg (MS) American, 8/4/05

State Rep. Mike Lott, R-Petal, is among a group of lawmakers proposing bills that would bar cities from using eminent domain laws to take private property for public use without just cause.

“We just don’t believe that economic development by private entities is just cause to take property,” Lott said.

The U.S. Supreme Court ruled in June that a city could pursue private development under the Fifth Amendment, which allows governments to take private property if the land is for public use. The justices said states are free to pass additional protections if they see fit.

“I think the Supreme Court ruling was a travesty to the way things need to be and should be. In my opinion, they grossly misinterpreted eminent domain,” Lott said Thursday. State Rep. Ed Blackmon Jr., D-Canton, and Rep. Jamie Franks, D-Mooreville, announced plans for a similar bill on Thursday.

There would be a companion constitutional amendment proposed to put before voters. Lott said he believes that any bill that supports limitations on the use of eminent domain will receive widespread support from state legislators. “It crosses party lines. This piece of legislation, in my opinion, will pass with flying colors,” Lott said.

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Hattiesburg American: www.hattiesburgamerican.com

Eminent Domain Bill Proposal: WLBT-TV3 (Jackson MS), 8/5/05

By David Kenney
It's an issue that affects any home or land owner. Should the government be allowed to take property, for private development?

In June, the U.S. Supreme court ruled private property could be taken by governments for economic development. Now some lawmakers in Mississippi say they disagree, and are planning to make changes to amend the high court ruling.

House members Ed Blackmon and Jamie Franks held a press conference announcing their proposal of a bill, that goes against the supreme court ruling.

Franks says, "We do not believe in a large corporation like Walmart should be able to take our homes that we have worked hard for all our lives or take farms, our businesses our churches houses, and turn them over to these large giant corporations."

Eminent domain was thrust upon many Madison county landowners in 1999, when state developers started buying up space for the Nissan plant.

One land owner, Bettye Cain sold her home and some of her land, but not by choice.

When asked if she would have sold her house if she didn't have to, Cain said, "No, not if I had wanted to. I like my house; some of my children were born in it."

Bettye says, eminent domain forced her into selling, knowing she had to leave, she fought for the best price she could get

Cain says, "They said if they come in and get it, I wouldn't get as much as if I sold it. I didn't want them just coming in and taking it."

Cain was also a member of Harvey Chapel Missionary Baptist Church, where she voted to stay, but the majority of the congregation voted to sell.

Even though the building was only four years old at the time, Nissan said the church had to go to make room for the plant, but it's still there, now as the Nissan fitness center.

Lawmakers will have to determine whether to include an amendment to allow cities to use eminent domain to take over dilapidated properties for improvements like they have in Alabama and Delaware.

Representative Ed Blackmon says, "I don't want to displace anyone because their economic state in life and allow these people to do what they can do in their power to help themselves on their own property."

But for the average landowner in Mississippi, if passed, the law would give greater bargaining power, when big business tries to move in.

Betty Cain says, "I went through something I wouldn't want anyone to go through. What I went through, it was real rough."

The passing of the eminent domain restriction bill would also require an approval of a constitutional amendment, by Mississippi voters.

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WLBT: www.wlbt.com

State prepares to fight 'eminent domain abuse': The Daily Advertiser (Lafayette LA), 8/5/05

[State] Sen. Joe McPherson, D-Woodworth, and Sen. Jay Dardenne, R-Baton Rouge, are drafting constitutional amendments to prevent local governments from seizing private property for business development. The bills are in reaction to a recent U.S. Supreme Court ruling that allows local governments to use the right of eminent domain to force property owners to sell their property to developers whose use of the property would provide more government revenue than that produced under the original ownership.

The number of states considering constitutional amendments similar to those being drafted in Louisiana is steadily growing. The most recent count by a national organization called Citizens Fighting Eminent Domain Abuse said such legislation is going before state lawmaking bodies in Alabama, Alaska, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Kentucky, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Dakota, Tennessee, Texas and Wisconsin.

Negative response from the public to the Supreme Court ruling has been overwhelming.

A poll by The Wall Street Journal and NBC News revealed that property rights has suddenly become the No. 1 issue among Americans. "Instant polls" by MSNBC and CNN showed massive opposition to the court ruling. At MSNBC, 98 percent of respondents were against local governments taking private property for development, while at CNN, 99 percent of those responding were opposed.

We support a constitutional amendment protecting property rights from misuse of the authority granted government under the right of eminent domain. It is not a simple issue, however, and must be approached carefully. In Baton Rouge, for instance, there is concern over the effect on dealing with blighted areas of the community. The Greater Baton Rouge Business Report says some restrictions on seizing property could harm efforts to revitalize Old South Baton Rouge.

That problem is being addressed in many states. In Massachusetts, for instance, a proposed amendment makes an exception when "such takings are necessary to prevent the development of, or to eliminate, dilapidated or blighted open areas as provided by law."

A constitutional amendment is needed. Before one is approved by the legislature or the public, however, it must be carefully scrutinized to assure that it does not go beyond the basic purpose stated by the Castle Coalition: to assure that government cannot "take your home or business and give it to a politically connected private developer because that developer might be able to produce more taxes."

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The Daily Advertiser: www.theadvertiser.com

Eminent domain an open space tool: The Times of Trenton (NJ), 8/5/05

By Darryl R Isherwood
When [Hamilton NJ] township officials settled their eminent domain case against the owners of the 50-acre Klockner Woods tract earlier this year, agreeing to pay $4.1 million for the property, they justified their decision by saying they were unsure they could win the suit and didn't want to lose the land to development.

On Tuesday, a state appeals court indirectly gave them their answer - one that might have saved taxpayers about $3 million.

The court ruled in a Burlington County case that avoiding development was a legitimate reason to take land away from a developer through eminent domain.

"We conclude that a municipality's acquisition for open space of properties on which residential development is planned constitutes a proper use of eminent domain power," the three-judge panel said.

Township officials declined to comment on the court decision or how it would affect the Klockner Woods purchase other than to say they were aware of the ruling and would review it closely.

It is unclear if the ruling could change the terms of the purchase since the township has already agreed on a price and must close by Sept. 1 or pay an 8 percent yearly penalty.

The township had been reluctant to go to court in their case against Doylestown, Pa.-based developer Fieldstone Associates, saying at the time they might lose.

After filing the case in early 2004, officials received a letter from Fieldstone's attorney threatening to fight the township in court. Rather than continue the legal battle, officials repeatedly upped their offer for the property from $1.24 million, finally arriving at the $4.1 million figure.

Critics have said the price is far too high because of the amount of wetlands on the property.

No wetlands delineation was ever done on the property, and no formal plan was heard by the township zoning or planning board. But township officials agreed to pay Fieldstone $100,000 for each of the 41 homes the developer and the township agreed could be built on the site.

The state Department of Environmental Protection (DEP) has since agreed to investigate the purchase to determine if the price is fair. The DEP must certify the value of the land because it will provide the majority of the funding for the purchase in the form of a grant and a low-interest loan.

The case decided Tuesday involved Mount Laurel, a township famous for its disputes over affordable housing in the 1980s.

Burlington County developer Mipro Homes had received approval to build 23 single-family homes on a 16-acre tract of land. Township officials, however, tried to condemn the land and take it through its powers of eminent domain, citing preservation of open space as the public purpose behind the move.

A Superior Court judge ruled against the township, but on Tuesday the three-judge panel reversed the decision, paving the way for Mount Laurel to take the property.

Supporters and opponents of the court's decision have since weighed in on the effect on state developers and on the ruling's possible effect on the Klockner Woods purchase.

Local attorney Michael Magee, who frequently represents area developers, said the court's ruling is not a surprise but opens the door for a much broader use of eminent domain powers.

"You can always make the argument that at some point it is good for the public," Magee said. "Now they are saying if there is some government goal, we will allow it."

Magee said the ruling was not entirely a gift to municipalities since developers are still entitled to a fair price for the land, which will rise depending on how far along in the approval process they are.

"They will have to pay the developers based on the approvals and not based on the land's value as open space."

Jeff Tittel, executive director of the New Jersey chapter of the Sierra Club, said the decision was a huge step forward for open space advocates.

"The court ruled that open space is a higher and best use for a property than development," Tittel said.

He said the ruling would assist municipalities in avoiding the dilemma Hamilton officials faced when trying to find a fair price for the Klockner Woods tract.

"Instead of negotiating a price, as they did in Hamilton, the court sets the price," Tittel said. "It actually helps to protect the town because if the court sets the price, you don't have to worry about spending too much."

But not everyone is a fan of the court's ruling.

A representative for the Builders League of South Jersey, which was a defendant in the case, said the decision was a blow to local builders and consumers alike.

"Under this ruling, even though a builder has followed all of the rules and gotten all of the necessary approvals, the development can still be stopped," said Rick Van Osten, executive vice president of the league.

"We already have a housing crisis in New Jersey. The demand far outweighs supply, and here is another tool for municipalities to use to stop development."

Van Osten said he was meeting with the league's board to determine if a petition to the Supreme Court was appropriate.

"It is likely we will do that," he said.

The ruling comes on the heels of a recent U.S. Supreme Court decision that allows a municipality to use eminent domain to further its economic goals. Under that ruling, a municipality may take land from a private owner for use in a commercial development that brings in more tax revenue.

In an interview yesterday, Tittel said the appeals court's ruling allowed the opposite to occur.

"That ruling said you can condemn land to build a mall," he said. "This one says you can take land to stop the mall," he said.

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The Times of Trenton: www.nj.com